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Madhya Pradesh High Court

Mayank Sharma vs Vishal Sharma on 5 February, 2018

                 THE HIGH COURT OF MADHYA PRADESH
                           MCRC-2088-2018
                            (MAYANK SHARMA Vs VISHAL SHARMA)


Jabalpur, Dated : 05-02-2018
Shri Amitabh Gupta, learned counsel for the petitioner.
Shri Vipin Yadav, learned counsel for the respondent.

Heard on admission.

This petition has been filed by the petitioner under Section 482 of Cr.P.C. against the order dated 29.11.2017 passed by the Judicial Magistrate First Class in RCT No.9808370/2012, whereby the petitioner’s application under Section 91 of Cr.P.C. filed on 10.11.2017, has been rejected. The aforesaid case has arisen sh out of a private complaint under Section 138 of the Negotiable Instruments Act, e 1881.

ad The brief facts of the case are that prior to the present petition, the petitioner had preferred MP no.1610/2017 against the same order before this Court and this Pr Court vide order dated 4.1.2018 dismissed said petition with the following a observations:

hy “Applying the aforesaid principles to the facts of the present case it becomes clear that it has been passed by the learned JMFC in ad exercising of its jurisdiction and merely if an application under Section 91 of Cr.P.C. has been dismissed, it cannot be said that the M learned Judge exceeded his jurisdiction or has not exercised his jurisdiction properly. Even on merits this Court finds that no of illegality has been committed by the learned trial Judge while dismissing the petitioner’s application under Section 91 of Cr.P.C. Otherwise also instead of availing other remedies available to rt the petitioner under Cr.P.C., the petitioner, by by-passing the ou aforesaid remedies, has filed this petition under Article 227 of the Constitution of India, which in the considered opinion of this Court is C not maintainable.

h So far as the aforesaid judgment cited by the learned counsel for the ig petitioner in the case of Laxmi Dyechem (supra) is concerned, the facts of the same are distinguishable and is of no help to the H petitioner in the present facts and circumstances of the case.

In the circumstances, the petition being wholly misconceived is liable to be and is hereby dismissed with a cost of Rs.1000/- to be paid by the petitioner to the District Legal Services Authority, Bhopal and its receipt be also submitted before the trial Court on the next date of hearing.” Apparently no liberty was granted to the petitioner to file a fresh petition and in fact this Court had dismissed the aforesaid writ petition on merits as well. However, learned counsel for the petitioner has vehemently argued before this Court that this petition can still be entertained, as the learned Judge of the trial Court has failed to exercise his jurisdiction vested upon him under the law. Learned counsel for the petitioner has also cited various judgments of the Hon’ble Apex Court in support of his contention, which are as under:-

(a) State of UP & another Vs. Synthetics & Chemicals Ltd. & another, (1991) 4 SCC 139.

(b) Vijay Vs. Laxman & another, (2013) 3 SCC 86.

(c) Laxmi Dhychem Vs. State of Gujarat & others, (2012) 13 SCC 375.

(d) Rangappa Vs. Sri Mohan, (2010) 11 SCC 441.

(e) Om Prakash Sharma Vs. CBI, Delhi, (2000) 5 SCC 679.

(f) Mina Lalita Barua Vs. State of Orissa & others, (2013) 16 SCC 173.

In the considered opinion of this Court, none of the judgments cited by the learned counsel for the petitioner are applicable in the facts and circumstances of the case. So far as the judgment of the Hon’ble Apex Court in the case of Synthethics and Chemicals (supra) is concerned, on which the petitioner has laid great emphasis to submit that the petition under Section 482 of Cr.P.C. is sh still maintainable, as this Court has not reflected on the merits of the case. The e relevant para 41 of the said judgment is reproduced as under:

ad “41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In Pr other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an a exception to the rule of prece- dents. It has been explained as rule of hy sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the ad particular point of law involved in the decision is not perceived by the Court or present to its mind.” (Salmond on Jurisprudence M 12th Edn., p.153) In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered without any argument, without reference of to the crucial words of the rule and without any citation of the authority.’ It was approved by this Court in Municipal rt Corporation of Delhi v. Gurnam Kaur. The Bench held that, ou 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perperated by unjust precedents. A decision which is C not express and is not founded on reasons nor it proceeds on h consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity ig and consistency are core of judicial discipline. But that which H escapes in the judgment without any occasion is not ratio decedendi. In B. Shama Rao v. Union Territory of Pondicherry, it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” Even applying the aforesaid text to the present case, this Court had passed the order after giving due consideration to rival submissions and as such the same cannot be said to have been passed sub-silentio. In the order it is specifically mentioned that the matter is dealt with on merits as well. Thus no help can be derived by the petitioner from the aforesaid decision.

This Court has dismissed the writ petition on merits after considering the rival submissions of the parties and agreed with the submission made by the learned counsel for the respondent.

In the impugned order of the trial Court it is mentioned that the petitioner by way of an application under Section 91 of Cr.P.C. has sought to produce income tax return of the complainant on the ground that the complainant had no such sum to the tune of Rs.6,40,000/- reflected in his income tax return and he is entitled to lead evidence in respect of his defence that the complainant was not financially sound to lend the aforesaid amount. It is also observed that in para 11 of his cross examination dated 12.5.2015 the complainant has clearly stated that he has not shown the aforesaid sum of Rs.6,40,000/- in his income tax return to be given to the petitioner. Apart from that in the impugned order it is also observed that sh many opportunities were given to the petitioner to lead his evidence since e 30.6.2015 and when the matter was kept for final arguments, the application ad under Section 91 of Cr.P.C. has been filed after two years, thus on the ground of Pr delay also the petitioner’s application has been dismissed which does not call for any interference by this Court. The inordinate delay in filing the aforesaid a hy application only shows the callous approach of the petitioner in contesting the case and still has no qualms to question the discretion of the learned trial Court.

ad In view of the same, no case for any interference is made out.

M Resultantly, the present petition filed by the petitioner under Section 482 of Cr.P.C. is hereby dismissed with no order as to cost. The learned Judge of the of trial Court is directed to decide the case expeditiously preferably within a period rt of six weeks from the date of receipt of certified copy of this Court.

ou C (SUBODH ABHYANKAR) h JUDGE ig H Digitally signed by MANZOOR AHMED Date: 2018.02.09 02:09:48 -08'00' Ansari